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Many parents who have children with physical and/or mental developmental disabilities need to know what to do when their child comes of age. On a child’s 18th Birthday, regardless of any physical or mental disability, their parents automatically lose the ability to make decisions for their child. This is a huge issue upon their 18th Birthday, because parents cannot even take their child to the doctor or enroll them in the programs that they may need. This is where a Guardian Advocacy is extremely helpful. By becoming the Guardian Advocate over your child with a disability, you can continue to make decisions for your child as their natural guardian since their birth.

Guardian Advocacy is controlled by Florida Statute 393.12. Florida Statute 393.063(9) defines a developmental disability as “a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” Continue reading

Florida’s 4th District Court of Appeals recently decided the case of what to do with a will that left the murder’s children the victim’s estate. The trial court held the “slayer statute” did not affect the will, and did not find enough evidence of undue influence to invalidate the will, however, the appellate court did not agree.

The husband Ben was murdered in 2009 and the case became famous when his wife Narcy was arrested and convicted of the murder, and the murder of Ben’s mother, shortly after. The court opinion stated she murdered Ben to assure that she and her family would obtain his considerable wealth. Narcy had a daughter by another marriage, and this daughter had two sons. Narcy’s daughter and the two sons were to inherit Ben’s estate if Ben’s mother and Narcy passed away before Ben. Continue reading

A trust is one of the most important estate planning tools available and can be used to achieve almost any estate plan’s purpose. A trust can even be drafted with provisions to allow the settlor, or the person who creates the trust, to set conditions for the beneficiaries to meet in order to receive distributions from the trust after the settlor passes.

Recently a trust with “some strings attached” made news due to some of its stranger and oddly specific requirements of the beneficiaries. Maurice Laboz was the owner of a large real estate management firm Regal Real Estate, and when he died, he left both of his daughters $10 million each through a trust. What is interesting about this trust is that each girl can receive their full inheritance when they reach the age of 35, or sooner if the daughters meet certain conditions Continue reading

While this does not directly deal with Florida estate planning, I thought it may be of interest to many of my readers including attorneys.

Florida’s Fourth District recently ruled last week that Florida Legislature’s has the ability to cap attorney’s fees and costs for bills that awards a plaintiff damages over the usual $200,000 cap when the state is a defendant in a tort action. This is a significant ruling because the legislature ruled to give the original plaintiff family more than the capped damages, but would not give their attorneys the contracted for contingent fees the family wished to pay them for the work done. Continue reading

Here at the Law Office of David M. Goldman, we come across many estate-planning problems that can be avoided by careful planning and forethought. With higher estate tax exemptions most individuals don’t have to consider avoiding estate taxes, so we often recommend a person’s estate planning goal be to leave behind a legacy that will preserve and protect your family.

A common mistake clients often make is to not name a contingent beneficiary of a retirement account or bank account. Generally, every retirement account requires a person to name a beneficiary, but a problem can arise if this named person passes before the retirement account holder. Always specify at least one contingent beneficiary to inherit the account if the primary beneficiary dies before you. It is also important to learn the difference between “per stirpes” and “pro rata” designations. Per stirpes means that if the named beneficiary dies, that person’s family inherits what the dead person would have inherited. Pro rata means the inheritance goes to the other surviving named beneficiaries. With the recent Supreme court decision, we often recommend that your trust be named as the primary beneficiary of your retirement accounts to avoid loss to the creditors of the beneficiaries. Continue reading

Congress will soon vote on passing the Special Needs Trust, Fairness Act of 2015, a bill designed to make it easier for people with special needs to create their own Special Needs Trust. A Special Needs Trust is used to enable a disabled individual to hold assets in a trust for his or her benefit by supplementing daily living expenses without making the disabled person ineligible for government benefits.

Under the current law, a Special Needs Trust must be created by the beneficiary’s guardian, parent, grandparent, or by the court even when the beneficiary is mentally competent. This forces someone that needs to fund a special needs trust to rely on family members for assistance, or to spend thousands of dollars to petition a court to establish the trust. Continue reading

Are you concerned about your father, another family member or close friend’s ability to continue taking care of his or her own health and property without help? Are you afraid they cannot remember to properly take their medications or go to their own doctor appointments? If a Power of Attorney and/or a Power of Attorney for Health Care is not already in place, the only means to help manage their health and assets is by establishing a guardianship within a court’s probate division. Once a guardian is appointed, the incapacitated person does lose many of his or her individual freedoms and rights, but gains the help from someone with legal authority to make health and property decisions for him or her.

A guardianship can be either plenary or limited. A guardian who manages all rights and property of an individual is referred to as a Plenary Guardian. A Limited Guardianship is when the court determines a person only lacks the ability to handle his or her affairs to a limited degree. In these situations, a person may lose their ability to contract, marry, make health care decisions, etc., but may maintain their right to determine where they live, retain employment and make decisions regarding their social environment to name a few. Continue reading

Elder fraud is becoming a growing concern as the baby boomers are beginning to retire and are not well versed in the latest technology. Recent studies show that senior citizens are being defrauded through Internet and telephone scams. As an estate planner and elder law specialist, I thought I would share a few tips on how to safeguard assets from financial abuse.

One way to prepare for the future and to safeguard assets is to have a Florida estate and financial plan with proper controls in place. We recommend that many clients should start considering adding elder law or asset protection planning once they reach age 60 or acquire large assets. The estate plan should deal with all of a client’s assets are accounted for and the plan be reviewed every periodically or when there has been a change in the family like a birth, death, divorce, or marriage. Continue reading

With the recent Supreme Court ruling making headlines for allowing same-sex couples to get married, the unnoticed effect of this monumental ruling is how it will affect the estate planning for couples that can now tie the knot. Same-sex married couples now have the same estate planning and tax benefits others couples have been enjoying for years. Now is a great time to update your estate plan to take advantage of all new benefits available.

Supreme Court Justice Kennedy wrote in his now famous opinion that same-sex couples are no longer “cosigned to an instability, many opposite-sex couples would deem intolerable in their own lives.” Before this decision 36 states had already recognized these marriages, but now the other 13 mostly southern states must follow. This means same-sex couples that live and marry in these states should consider updating or creating estate plans that take advantage of their new legal status. Continue reading

While irrevocable trusts were once thought to be untouchable this may no longer be true as the practice of “decanting” a trust becomes more commonly used. Decanting lets a trustee, or the manager of the trust, change certain terms by figuratively pouring the assets from an old trust into a new one. So far, 21 states have adopted decanting laws and a group of trust lawyers and professors are drafting a model law to serve as a template for states to use in the future as a model.

Many families use irrevocable trusts to pass wealth to their beneficiaries because of the tax advantages and other benefits the trust offers. So far there are some limits to what decanting can do, as, for instance, trustees cannot change a beneficiary’s already vested interests in a trust.

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